Nine years after the passage of the Fixed-term Parliaments Act, both government and opposition have expressed a desire to repeal it, following two general elections: one brought about about using the provisions of the Act and another by circumventing them. The Constitution Committee has produced a report setting out what any replacement legislation needs to address. Its Chair, Baroness Taylor, discusses the Committee’s conclusions below.
On its introduction in 2011, the Fixed-term Parliaments Act (FTPA) was heralded by the then Deputy Prime Minister, Nick Clegg, as a ‘constitutional innovation’ that would no longer allow the timing of general elections to be a ‘plaything of Governments’. Nine years on, it is safe to say that the FTPA has not had the effect that he and others envisaged. The FTPA has been stress-tested and found wanting by political parties and commentators alike.
The FTPA sets the length of parliaments at five years and requires the approval of the House of Commons for an early general election. It removed the longstanding prerogative power of the monarch to dissolve parliament at the request of the Prime Minister and instead vested this authority in Members of Parliament. In 2017, Prime Minister Theresa May proved that a government that wanted an election could secure one using the provisions of the FTPA. In 2019, at the helm of a minority government that was thrice denied an early general election under the FTPA, Prime Minister Boris Johnson sidestepped its requirements with the Early Parliamentary General Election Act.
These events prompted proposals from both the Conservative and Labour parties to repeal the FTPA. The current government has reiterated that commitment since taking office. However, repealing the FTPA is not straightforward, given its constitutional and legal implications. It is in this context that the House of Lords Constitution Committee published its report on the FTPA on 4 September, exploring its effects and the questions that need to be addressed for any future reform.
Repealing the FTPA
While the government committed to ‘get rid’ of the FTPA, the Committee points out that there can be no repeal of the Act without proposing alternative arrangements.
The length of parliaments
The FTPA is the only legislation that sets the length of a parliament and which provides a mechanism by which parliament is dissolved. Without new provisions, the current parliament could last indefinitely – or at least until another bill was passed to provide for a general election. This would be unsatisfactory: the law must set the maximum length of a parliament and provide a standing mechanism for its dissolution.
The issue of prerogative powers
Repealing the FTPA also raises difficult questions about the legal status of reformed prerogative powers. There is disagreement on whether repealing the FTPA would revive the prerogative power of the monarch to dissolve parliament or extinguish that prerogative power entirely. Uncertainty in this regard would be unacceptable as it would risk politicising the role of the monarch. The Committee says that if the government seeks to grant the Prime Minister power to dissolve parliament, ’it must be done in such a way that a legal challenge to its use is put beyond doubt’. To ensure legal certainty, and to avoid the possibility of legal challenge to the Prime Minister’s advice to the monarch, a straight repeal of the FTPA would not be acceptable. The Committee’s report explores the questions that must be addressed to determine the shape of its replacement.
Replacing the FTPA
Could the length of parliaments be fixed absolutely, or should mechanisms allow for early general elections?
Fixing the length of a parliament should lead to greater certainty. It should enable governments to structure their legislative programmes, the opposition to talk to the civil service in good time ahead of an election, select committees to plan their scrutiny and electoral administrators to arrange for elections. Since the FTPA was introduced, only the 2010-15 parliament has completed its expected five-year term. It is therefore difficult to determine if these potential benefits are realised in practice.
Mechanisms in the FTPA to seek early general elections were utilised by both Theresa May and Boris Johnson. Parliament will need to consider whether such mechanisms should be removed in order to increase the likelihood of a parliament lasting the full five-year term, or whether these mechanisms are needed to avoid parliamentary deadlock. However, regardless of parliamentarians’ preference, there is no way to prevent a bill that bypasses the new mechanisms, as the Early General Election Act 2019 proved.
What should be the maximum length of a parliament?
In setting the length of parliament at five years the FTPA was not revolutionary in its effect. Previous parliaments have lasted for the maximum of five years if that suited the government of the day, or less if the Prime Minister saw an advantage to an early election or the government was defeated in a confidence vote. The FTPA delayed the speed at which an early election might be called, but it did not prevent it.
Parliament must consider what the maximum length of a parliament should be. This will depend in part on the mechanisms in place for allowing an early general election. The evidence taken by the Committee found that five years was unusually long in international terms, but if in practice this period is regularly truncated by an early general election, it would not be problematic. If mechanisms to bring about early elections are not included in a replacement to the FTPA, a four-year maximum term may be more appropriate.
Should the calling of an early general election require the consent of the House of Commons? If so, what threshold, if any, should be set for approving one?
Under the FTPA an early general election can be called in one of two ways: (i) if two-thirds of MPs vote for an early general election, or (ii) if the government loses a statutory vote of no confidence and the Commons does not pass a motion of confidence within the following 14 days. In either scenario consent from the Commons is required for an early election.
This proved to be a meaningful constraint on the government in 2019, when on three separate occasions it was denied the election it sought. However, it also perpetuated political instability. If the FTPA is reformed, parliament must decide what role the Commons should have in approving an early general election and the threshold for that approval. As the passage of the Early General ElectionAct 2019 proved, the value of a threshold higher than a simple majority of MPs is limited if that threshold can readily be bypassed.
If the consent of the Commons is required for an early general election, should the Commons be asked to approve the date for the election?
Once the Commons has given its consent to an early general election under the FTPA, the date of the election is at the behest of the Prime Minister. This proved controversial in 2019, when opponents of Brexit were concerned that Boris Johnson might choose a date for the election after the UK had left the European Union. When considering the future of the FTPA, parliament should consider whether the scope for prime ministers to choose a date to suit their perceived electoral advantage is undesirable.’
What about the power to prorogue parliament?
In August 2019, the government decided to prorogue parliament for five weeks – an usually long period and one that proved controversial. It resulted in the Miller/Cherry judgment of the Supreme Court, which ruled that the prorogation was unlawful.
Prorogation is a prerogative power that the FTPA explicitly left with the monarch to exercise on the advice of the Prime Minister. As prorogation gives the executive unfettered power to bring to an end all parliamentary activity, parliament should consider whether this power should be put in statute and subject to the approval of one or both Houses.
The FTPA sought to increase political stability and prevent governments from seeking electoral advantage in the calling of elections. Eight years later, the FTPA was used by two Prime Ministers to seek fresh electoral mandates. The FTPA will be subject to a statutory post-legislative review committee starting later this year. That review, and parliament as a whole, will need to make decisions on the future of the FTPA based on the questions laid out in the Committee’s report. As the Committee concludes, such constitutional change must be designed to stand the test of time and that is most likely achieved by building on consensus.
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About the author
Baroness Taylor of Bolton is Chair of the House of Lords Constitution Committee.